Postpichal v. Cricket Wireless, LLC

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 JAMIE POSTPICHAL, et al., Case No. 19-cv-07270-WHA (AGT) 8 Plaintiffs, DISCOVERY ORDER v. — 9 — Re: Dkt. No. 403 10 CRICKET WIRELESS, LLC, Defendant. — 11 — — 12 — 13 On December 23, 2021, Cricket produced a spreadsheet containing unredacted addresses 14 and cellphone numbers for Cricket customers who plaintiffs contended were members of the 15 certified class. The spreadsheet was designated confidential and is subject to the terms of the 16 parties’ stipulated protective order (Dkt. 71). Cricket now says the customer addresses and 17 cellphone numbers in the spreadsheet were “inadvertently produced” and must be destroyed 18 because such information is “immune from disclosure under federal and state privacy laws.” 19 Dkt. 403 at 4 (citing 47 U.S.C. § 222 and Cal. Pub. Util. Code § 2891 (a)(4)). Cricket also claims 20 that plaintiffs’ counsel—whom Judge Alsup has appointed to represent the certified class—have 21 identified no legitimate need for the customer addresses and cellphone numbers at issue. The 22 Court disagrees. 23 First, the Court agrees with plaintiffs that “[c]omplete customer records are plainly 24 relevant at this stage of the case because plaintiffs’ counsel is now class counsel and charged with 25 protecting the rights of the certified class and challenging Cricket’s attempts to remove customers 26 from the certified class.” Dkt. 403 at 3; see Dkt. 344 (order confirming appointment of plaintiffs’ 27 counsel as class counsel and providing that “plaintiffs may challenge each individual exclusion 1 Second, the two privacy statutes Cricket cites, 47 U.S.C. § 222 and Cal. Pub. Util. Code 2 § 2891(a)(4), both authorize disclosure of the disputed customer information upon court order. 3 See ICG Commc’ns, Inc. v. Allegiance Telecom, 211 F.R.D. 610 (N.D. Cal. 2001) (ordering 4 disclosure of customer proprietary network information, subject to “attorney eyes only” protective 5 order, because court-ordered discovery falls within exception under 47 U.S.C. § 222 (c)(1) for 6 disclosures “required by law”); McArdle v. AT & T Mobility LLC, No. 09-cv-01117-CW (MEJ), — 7 — 2010 WL 1532334 , at *6 (N.D. Cal. Apr. 16, 2010) (overruling defendant telecommunication 8 companies’ objections and compelling disclosure of subscriber phone numbers prior to class 9 certification; finding that Cal. Pub. Util. Code § 2891 “does not prohibit the disclosure of 10 Defendants’ customers’ contact information under a court order, and there is no requirement that 11 the Court require an affirmative waiver from any such persons”). Cricket’s contention to the 12 contrary, that these statutes “protect such information from any disclosure without the express 13 consent of the customers,” is rejected. Dkt. 403 at 5. 14 Finally, the parties’ stipulated protective order provides sufficient protection for customer 15 information produced to class counsel as confidential. While Cricket speculates that plaintiffs’ 16 counsel “seek the information so that they can solicit excluded class members to file arbitrations 17 against Cricket,” id. at 4 , the protective order expressly provides that materials designated 18 confidential may be used “only for prosecuting, defending, or attempting to settle this litigation,” 19 Dkt. 71 § 7.1 (emphasis added). See O’Connor v. Uber Techs., Inc., No. 13-cv-03826-EMC, 2017 20 WL 3782101 , at *6 (N.D. Cal. Aug. 31, 2017) (finding that a similarly worded protective order 21 prohibited class counsel from “using the protected class list to solicit retainer agreements for 22 individual arbitration proceedings outside of this litigation”); see also Lou v. Ma Lab’ys, Inc., No. 23 12-cv-05409-WHA (NC), 2013 WL 12328278 , at *1 (N.D. Cal. Mar. 28, 2013) (granting 24 plaintiffs’ motion to compel contact information of putative class members and rejecting 25 defendants’ “unsubstantiated allegations of improper solicitation of class members by plaintiffs’ 26 counsel,” noting that “[i]f such allegations are true, defendants will have the opportunity to raise — 27 — ] the issue, with briefing and factual evidence, to Judge Alsup”) (emphasis added).! 2 te Kk ok 3 Cricket’s request that plaintiffs be required to destroy the customer addresses and 4 || cellphone numbers at issue is denied. 5 IT IS SO ORDERED. 6 || Dated: April 12, 2022 — 7 — — 8 — A TSE 9 United States Magistrate Judge — 10 — 1] — 13 — — 16 — Oo Z 18 — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — 28 ' To the extent Cricket takes issue with the wording of plaintiffs’ proposed notice to excluded class members, it may raise that issue with Judge Alsup, who will be overseeing such notice.